ICC DECIDED THAT PT. TELKOM AND PT. TELKOMSEL IS NOT PERPETRATING A DISCRIMINATORY PRACTICE IN NETFLIX CASE.
The Indonesia Competition Commission (ICC) decided that PT. Telekomunikasi Indonesia (Persero) Tbk and PT. Telekomunikasi Selular is not proven to have violated Article 19 sub-article d of Law Number 5 Year 1999 regarding Prohibition of Monopolistic Practices and Unfair Business Competition in the Alleged Discriminatory Practice case of PT Telekomunikasi Indonesia (Persero) Tbk and PT Telekomunikasi Seluler against Netflix with regard to the Provision of Internet Access Services of Providers. The conclusion was conveyed in the Panel Hearing for the Reading Out of the Decision held online at the Head Office of ICC on April 29, 2021.
This case had its origin from an initiative research along with the findings that surfaced in the public with regard to the blocking of access of customers to various networks owned by PT Telekomunikasi Indonesia (Persero) Tbk (TELKOM) and PT Telekomunikasi Seluler (TELKOMSEL) in accessing Netflix contents as from 2016 up to the end of 2018. The findings were continued to the investigation and hearing phases under Case Number No. 08/KPPU-I/2020 concerning Alleged Discriminatory Practices of PT Telekomunikasi Indonesia (Persero) Tbk and PT Telekomunikasi Seluler against Netflix with regard to the Provision of Provider Internet Access Services.
The Commission Panel found in the hearing proceedings that the Reported Parties had indeed blocked or closed the internet access to Netflix services, where TELKOM blocked the fixed network (Fixed Broadband) and TELKOMSEL blocked the mobile network (Mobile Broadband). In this regard, the Commission Panel summed up that there had been different treatment or discrimination taking place by the Reported Parties between Netflix and other Subscription Based Video On Demand (SVOD) providers. However, the Commission Panel also found that the blocking did not result in unfair business competition. This is in view of the findings of various proofs, among other things, that such action was taken in order to avoid the possibility of being subject to violation of Law Number 44 Year 2008 and Law Number 19 Year 2016, there were no losses being suffered by Netflix, and consumers could still have choices to see Netflix services through other providers.
With due observance of the various facts, judgments, analyses, and conclusions during the hearing proceedings, the Commission Panel decided that PT Telekomunikasi Indonesia (Persero) Tbk and PT Telekomunikasi Seluler were not legally and convincingly proven to have violated Article 19 sub-article “d” of Law Number 5 Year 1999 regarding Prohibition of Monopolistic Practices and Unfair Business Competition.
Furthermore, the Commission Panel recommends the Commission to give advices and considerations to the Ministry of Communications and Informatics to make a regulation regarding Over The Top which among other things include Advertising-Based Video on Demand (AVOD), Transactional Video On Demand (TVOD), and Subscription Based Video On Demand (SVOD), considering that to date there has not been a rule yet regarding Over The Top even though they use Internet Service Provider (ISP) network infrastructure and continue growing significantly. This includes a rule for blocking and negatively charged internet sites, as well as making a rule regarding the things that must be complied with in the cooperation between ISP Business Actors and Over The Top Business Actors because aside from relating to the private aspect (business to business), there is a public aspect as well.